The parties are former spouses who were divorced by a judgment granted on October 17, 2011 (Supreme Court, Rockland County, Index No. 1213/09). All issues of child custody and visitation were resolved by a written stipulation dated March 1, 2010 (the Stipulation) that was incorporated without merger in the judgment of divorce. The Stipulation provides for joint legal custody of the parties' minor children and primary placement with the mother, who is the defendant in the divorce action and also in this action. The Stipulation permits defendant to relocate her residence, with the children, within 200 miles of the residence she occupied when the stipulation was executed, which was located in Nyack, New York. The Stipulation further provides that if defendant relocates a distance of more than approximately 200 miles from her Nyack residence: (1) one-half of plaintiff's visitations will occur in Rockland County, with defendant transporting the children at her expense; and (2) one-half of plaintiff's visitations will occur in the area of defendant's relocated residence, and defendant shall pay plaintiff $200 per visit for travel fees or, alternatively, may exercise the option to transport the children to plaintiff's residence in Rockland County (see Stipulation, Article III [pp. 7-8]). Defendant relocated to Ithaca, New York in August 2012.

Plaintiff commenced this action and moved for summary judgment, pursuant to CPLR 3213, seeking to recover sums he alleges are due him for traveling to Ithaca for visitation with the parties' daughter beginning in October 2012 on the basis that Ithaca is more than 200 miles from Nyack, New York.^[FN1] In support of his motion, he alleges that Ithaca, New York is "more than 200 miles from Nyack, New York" (Affidavit of Joel Carreiro, sworn to August 5, 2014, ¶ 21), but submits no other proof regarding the distance between defendant's prior residence in Nyack, New York and her relocated residence in Ithaca, New York.

Defendant opposes plaintiff's motion and asserts a counterclaim for prima facie tort. In opposition to plaintiff's motion, defendant avers that the straight-line, or radial, distance between the street addresses of the two residences is 162.64 miles (see Affirmation of Edward E. Kopko dated September 18, 2014, ¶ 10). Plaintiff does not contradict defendant's proof regarding the radial distance between the two residences, but argues that the Stipulation requires that the 200 mile distance be measured by the driving distance. Although neither party provided proof of the driving distance between the two residences, the court takes judicial notice that it exceeds 200 miles.^[FN2] Inasmuch as there is no dispute about the radial or driving distances between defendant's [*2]residences in Nyack and Ithaca, resolution of plaintiff's motion turns on the interpretation to be given to the measurement of distance specified in the Stipulation.

The Stipulation obligates defendant to pay travel fees to plaintiff if visitation occurs "at a relocated residence of the Mother approximately 200 miles from the Mother's current residence in Nyack, New York" (Stipulation, Article III [p. 8]). Precedent of the Appellate Division, which this court is bound to follow, shows that the Stipulation is not ambiguous, and requires that it be construed as obligating defendant to pay travel fees to plaintiff only if she relocates an approximate distance of more than 200 radial miles from her former residence in Nyack.

In Potier v Potier, 198 AD2d 180 (1993), the parties entered into a Separation Agreement permitting the plaintiff wife to relocate within 60 miles of the Empire State Building. Like the Stipulation at issue in this case, the Separation Agreement in Potier provided only the relevant distance without specifying whether it was to be measured on a straight-line basis or by the actual driving distance (see Record on Appeal, Potier, Vol. I, p. 66 [plaintiff "shall reside within sixty (60) miles of the Empire State Building"]). And, like the facts in this case, the wife relocated to a residence within the distance specified by the parties' agreement, if measured on a radial basis, but beyond the specified distance, if measured by the driving distance. On those facts, the Appellate Division, Second Department, unanimously affirmed the trial court's determination that the plaintiff wife's relocation to a new residence located 77 road miles from the Empire State Building did not violate the terms of separation agreement because it was located less than 60 radial miles therefrom. As a matter of law, having moved a distance of less than 163 radial miles, defendant did not relocate "approximately 200 miles" from her former residence, and she [*3]is not obligated under the Stipulation to pay travel fees to plaintiff.

Although defendant did not cross-move for summary judgment, the record shows that she is entitled to summary judgment dismissing plaintiff's claim (see CPLR 3213 [authorizing the court to fashion appropriate relief upon denial of plaintiff's motion]; CPLR 3212[b] [authorizing the court to grant summary judgment to a party other than the moving party upon a proper showing without the necessity of a cross-motion]; see also Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3213:11, pp. 420-421).

Based on the foregoing: (1) plaintiff's motion is denied; (2) defendant is granted summary judgment dismissing, with prejudice, plaintiff's claim against her for travel fees associated with his exercise of visitation in Ithaca, New York; (3) defendant's counterclaim for prima facie tort — as set forth in the Affidavit of Colleen Colbert, sworn to September 18, 2014, ¶¶ 107-127, and the wherefore clause on p. 16 — is severed (see Newcourt Small Bus. Lending Corp. v Grillers Casual Dining Group, 284 AD2d 681 [2001]); and (4) plaintiff may file and serve a reply to defendant's counterclaim on or before December 22, 2014.

This decision constitutes the order of the court. The transmittal of copies of this decision and order by the court shall not constitute notice of entry.

Cortland, New York

______________________________

HON. PHILLIP R. RUMSEY

Supreme Court Justice

The following documents were filed with the Clerk of the County of Tompkins:

Notice of motion dated August 7, 2014.

Affidavit of Joel Carreiro, sworn to August 5, 2014, with Exhibits A — F.

Affirmation of Edward E. Kopko dated September 18, 2014, with Exhibit One.

Affidavit of Colleen Colbert, sworn to September 18, 2014.

Undated reply affirmation of Anthony N. Elia, filed September 25, 2014, with Exhibits F — H.

Reply affidavit of Joel Carreiro, sworn to September 24, 2014, with Exhibits A — E.

Excerpt From Record on Appeal, Potier v Potier, 198 AD2d 180 (1993), Vol. I, p. 66 (copy of page 28 of the Separation Agreement), filed by the court.

Original Decision and Order dated November 21, 2014.